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Is Bethune-Hill a Major Voting Rights Victory or the Next Northwest Austin?

On March 1st, the Supreme Court issued its decision in Bethune-Hill.[1] While the Court’s decision to remand eleven of the twelve Virginia legislative districts wasn’t too surprising given Kennedy’s skeptical tone at oral argument, what was surprising was the virtually unanimous acclaim from the election law community.[2] Taking a page from Stephen Colbert, the only question seemed to be whether Bethune was a great decision or the greatest decision.

But this superficial consensus among the Justices should give pause to those who care about the survival of the Voting Rights Act (VRA). The sorting claim was developed by opponents of the VRA as a weapon to cut down districts designed to protect minority voting power. Only recently have voting rights lawyers begun to wield this weapon for their own purpose: striking down districts that pack minority voters based on the pretext of “complying” with the VRA. At the end of the day, the claim remains a weapon that can be used to advance or undermine the VRA, and Bethune has sharpened the knife for both sides.

Perhaps the most revealing sign of these crosscutting currents was Chief Justice Roberts’ presence in the majority. Roberts has long opposed Section 2’s results test and previously subscribed to the views of Justices Alito and Thomas regarding predominance, agreeing with Justice Scalia in LULAC that the intentional creation of a majority-minority district alone necessarily triggers strict scrutiny. So why the change? One explanation might be that the Chief Justice is building an illusion of consensus similar to that found in Northwest Austin ahead of a more sweeping and controversial decision yet to come.[3]

With more redistricting litigation ahead, the key to preserving the VRA will be handling the Bethune holding with care. Below I examine the good, the bad, and the ugly about Bethune and offer some thoughts on how it might be used to help enforce the VRA and fend off challenges to the VRA rather than inviting its demise.[4]

The Good

If employed wisely, Bethune could become a powerful tool for protecting minority voting power at a time when such tools are in increasingly short supply. With Section 5 rendered toothless by Shelby County and the Department of Justice stepping back from rigorous VRA enforcement, Bethune offers a way for private litigants to more effectively use Section 2 claims and sorting claims to protect ability-to-elect in districts with significant minority population without unnecessarily sapping voting influence in adjacent districts.[5]Bethune makes this set of claims more effective by emphasizing the importance of how the state uses race in weighing predominance. Turning decisively away from Justice O’Connor’s concurrences in the racial sorting case law, the key question is whether “race for its own sake” was the “overriding reason for choosing one map over others.” Slip Op. at 10.

This focus is significant. First, the standard stops short of the Alito/Thomas view that the intentional creation of a district for a racial purpose alone is sufficient to trigger strict scrutiny. This view would render every application of the VRA to redistricting presumptively unconstitutional. Second, the standard is more potent than other approaches to cabining the claim. Dale Ho, for example, has advocated for transforming the sorting claim into an animus-focused packing claim. The Bethune decision omits the need to prove animus but attempts to cabin the claim by focusing on whether legislators allowed unjustified “racial shortcuts”—or, “race for its own sake”—to drive districting decisions.

This transforms the claim into a useful VRA enforcement device. Alabama held that mechanical uses of race do not survive strict scrutiny (i.e., are not “reasonably necessary” under the VRA), and Bethune held that mechanical uses of race trigger strict scrutiny (i.e., make race “predominant” under the Equal Protection Clause), but neither held that the intentional use of race is impermissible altogether. As Justin Levitt has pointed out, legislators with an interest in “genuine compliance” with the VRA must conduct an intensely nuanced, factually rigorous appraisal of local political conditions to determine whether a district preserves minority ability-to-elect. Bethune lets private litigants call the state forward to check that work.

If the state did not engage in a “skin-deep” use of race, then the state’s intentional use of race to prevent dilution or retrogression consistent with maintaining communities of interest may not only survive strict scrutiny, it may not trigger strict scrutiny at all. As Miller stated:

“A State is free to recognize communities that have a particular racial makeup, provided its action is directed toward some common thread of relevant interests. ‘[W]hen members of a racial group live together in one community, a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes.’ But where the State assumes from a group of voters’ race that they think alike, share the same political interests, and will prefer the same candidates at the polls,’ it engages in racial stereotyping at odds with equal protection mandates.”

Miller, 515 U.S. 900, 920 (1995) (citing Shaw, 509 U.S. 630 (1993)) (emphasis added). Thus, a district is not presumptively unconstitutional simply because it was intentionally formed pursuant to the commands of the VRA.[6] Rather, a district is presumptively unconstitutional when the state relies upon “race for its own sake” to combine voters rather than “neutral considerations,” such as geography, economy, or other indicia reflecting an actual community of interest.[7]

Perhaps most importantly, Bethune clarifies that this is a process-based constitutional violation. Even if the resulting district reflects a community with shared interests, the violation occurs with the “skin-deep” use of race as a basis for government action and the “offensive and demeaning assumption[s]” such decision making entails.

As I’ve previously written, the determinative question in a sorting claim should be the basis of the sort, not the goal of the sorter. The Supreme Court’s treatment of this distinction has always been somewhat vague, but lower courts have been more precise. Compare Perez majority, Slip Op. 96 (noting that a vote dilution claim alleges “an action disadvantaging voters of a particular race,” whereas a vote sorting claim alleges “that the State has used raced as a basis for separating voters into districts regardless of motive”), with Perez dissent, Slip Op. 181 (“This case is really about only whether the congressional lines in the challenged districts were drawn for racial or partisan purposes.”).[8]Bethune rejected the notion that predominance requires an “actual conflict” between traditional criteria and the state’s use of race,[9] but it reaffirmed that “[t]he racial predominance inquiry concerns the actual considerations that provided the essential basis for the lines drawn.” Bethune, Slip Op. at 9. When a state engages in racial essentialism, it triggers strict scrutiny because it is “separat[ing] its citizens into different voting districts on the basis of race.” Bethune, Slip Op. at 6. When a state engages in a robust functional analysis and draws districts that protect minority ability to elect based on actual shared interests, however, “race for its own sake” no longer provides “the essential basis for the lines drawn.” Instead, the “Government . . . treat[s] citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller, at 911.

Justice Kennedy’s approach to predominance provides two other benefits: it ameliorates the tension between racial and political representation as well as the tension between the judicial and legislative branches.

To the first point, commentators have claimed that the VRA skews political outcomes and enhances Republican power by inherently packing Democrats. Nick Stephanopoulos has demonstrated that this tension between racial and political fairness is not inevitable. If one controls for the party in power, this “tension” largely disappears. Using Bethune, litigators can now unpack districts enough to improve racial and political representation without undermining minority ability-to-elect itself.

To the second point, Bethune might ease tension between government branches in at least one respect: asking a federal court to hold that legislators did not conduct a sufficiently rich evaluation of local voting conditions pursuant to the VRA is far easier than asking a federal court to hold that legislators packed voters with “animus” or an “invidious intent” to dilute minority voting power. Judges of all persuasions are more likely to find for plaintiffs when doing so does not involve impugning the motives of legislators.[10]

For all of these reasons, Bethune could be viewed as a “major victory” for voting rights advocates. The pivotal question is whether litigators and lower courts will apply Bethune in this fashion—or, more importantly, whether the Supreme Court will let them.

The Bad

With Judge Gorsuch’s nomination dominating the news cycle, Supreme Court watchers are especially attuned right now to the direction of doctrine. If litigants are not careful, this is where the battle over Bethune will be lost. In the long-term, Bethune poses three risks.

First, Kennedy’s view of predominance might slowly evolve towards Alito & Thomas’ view. Roberts subscribed to the Alito/Thomas view of predominance in LULAC. By joining the majority in Bethune, he may be engaging in a form of directional incrementalism, building “consensus” around otherwise controversial concepts and attempting to slowly erase the distinctions between these two approaches. As Rick Hasen observed after the Texas decision, much of the Court’s voting rights jurisprudence “will depend upon what Justice Kennedy leaves in place before he goes, and how quickly a new conservative majority would look to dismantle it.”

Unfortunately, what Justice Kennedy has “left in place” with Bethune is vague enough to be re-purposed. Indeed, the opinion at one point appears to reject the idea that “the harm from racial gerrymandering lies . . . in grouping voters of the same race together when they otherwise lack shared interests,” instead stating that the constitution violation stems from the “racial purpose of state action.”[11] Slip Op. at 9. Opponents of the VRA are likely to seize on this passage to argue that the VRA mandates a “racial purpose” and, therefore, requires that race always be the “overriding reason for choosing one map over others.”

Calling the decision a “7-1” or “8-0” victory glosses over this critical distinction and invites the kind of conflation that could cause Alito and Thomas’ approach to displace Kennedy’s. As the district court in Bethune pointed out, the Court cannot “deman[d] the impossible” by “ask[ing] legislators to accidentally wander into compliance with the VRA.” The Kennedy view of predominance leaves an administrable way for legislators to intentionally create districts pursuant to the VRA’s commands without those districts being presumptively unconstitutional. The Alito/Thomas view does not.

Second, the Court might hold that the VRA does not constitute a compelling state interest. While the majority held that the state’s use of race must be “justified,” the Court was unanimous in failing to call compliance a sufficient justification. See Slip Op. at 13 (“As in previous cases . . . the Court assumes, without deciding, that the State’s interest in complying with the Voting Rights Act was compelling.”); J. Alito Op. at 1 (same); J. Thomas Op. at 3-4 (arguing that VRA compliance is not a compelling interest). This is a precarious posture with Judge Gorsuch likely to join the Court, and it is compounded if litigants fail to properly recognize (and reiterate) the importance of the 6-2 split on predominance going forward. Recall that the Court stated in Miller:

“[The] implicit command that States engage in presumptively unconstitutional race-based districting brings the [VRA], once upheld as a proper exercise of Congress’ authority under § 2 of the Fifteenth Amendment, into tension with the Fourteenth Amendment. As we recalled in Katzenbach itself, Congress’ exercise of its Fifteenth Amendment authority even when otherwise proper still must ‘consistent with the letter and spirit of the constitution.’ We need not, however, resolve these troubling and difficult constitutional questions today.”

Miller, at 927. This language was invoked in response to the DOJ’s “max-black” policy, but the sweep of its terms is potentially far wider.

Finally, the flexibility of the Bethune standard could lead to a flood of litigation that convinces the Court to dramatically curtail its intervention in the field. All of the Justices seem frustrated with the complexity, density, and frequency of mandatory-jurisdiction redistricting cases. Unless attorneys clearly advise lower courts on how to apply Bethune (and clearly advise legislators on how to avoid litigation), the whole line of cases risks building frustration to the point where the Court scales back its involvement.

Justice Breyer voiced these frustrations at oral argument, and Justice Ginsburg made her concerns known in Miller itself, stating that now “a federal case can be mounted whenever plaintiffs plausibly allege that other factors carried less weight than race” and calling the standard an “invitation to litigate against the State [that] seems to me neither necessary nor proper.” Miller, at 945 (Ginsburg, J., dissenting). A Justice Gorsuch would likely welcome such a pullback: “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box . . . . This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

The Ugly

One of the odder parts of Bethune is its treatment of Shaw II. The Court has a habit of employing redistricting buzzwords—“traditional,” “neutral,” and “legitimate”—in inconsistent combinations to variously describe redistricting factors, practices, and purposes. This problem is on full display in Bethune. Within the space of two pages, Justice Kennedy cites Shaw II for the proposition that “[r]ace may predominate even when a reapportionment plan respects traditional principles,” Slip Op. at 9, and then, for the fact that “[the] Court to date has not affirmed a predominance finding . . . without evidence that some district lines deviated from traditional principles,” Slip Op. at 10.

This confusion stems from the Court’s continuing tendency to lump the concepts of “neutrality” and “race-neutrality” together. The district court in Bethune recited a number of “traditional” redistricting factors, including compactness, contiguity, political subdivisions, political affiliation, incumbency, etc. The district court—like the Supreme Court—also noted that these were all “race-neutral” factors. See Slip Op. at 9-10 (“The District Court here identified no fewer that 11 race-neutral redistricting factors . . . .”). Unlike the Supreme Court, however, the district court distinguished between race-neutral factors and neutral factors. Political affiliation and incumbency, for example, may be race-neutral, but they are not “neutral” with respect to the identities of the persons who are sorted and should not be considered “neutral” under the Equal Protection Clause.

As voting rights advocates look ahead to new litigation, the following points could help avoid the risks above while maximizing the benefits of the Bethune decision.

Predominance

To prove predominance, advocates should be wary of citing the fact that VRA compliance was mandatory or the fact that a district was formed to comply with the VRA. Instead, the focal point should be whether legislators employed a skin-deep shortcut to achieve this alleged “compliance.”[13] The question should not be whether the state employed percentages, population shifts, or any given use of race per se, but whether these involved the use of “race for its own sake.” If the state engaged in racial essentialism to allegedly “comply” with the VRA, then the district should be subject to strict scrutiny.

The Bethune approach to predominance also means that districts found subject to strict scrutiny for using racial shortcuts should almost always be struck down. In this respect, I disagree with Michael Dorf’s view of the case. Dorf writes:

“Because the SCOTUS did not say whether the 11 districts had resulted from the predominant use of race, it also didn’t say whether the state was justified in so using race, but it pretty clearly follows from the SCOTUS affirming the district court on the 12th district–finding that the 55% figure was narrowly tailored to further the assumed compelling interest in complying with the VRA–that on remand the district court should find that the use of race in the other 11 districts also satisfies strict scrutiny.”

In my view, this glosses over the record and the central thrust of the opinion. The 55% target was based off of a functional analysis of HD 75. See Slip Op. at 2, 4, 6, 14-16 (“The record here supports the legislature’s conclusion that this was one instance where a 55% BVAP was necessary for black voters to have a functional working majority.”). Because this percentage was grounded in a functional analysis of that specific district, the use of the threshold survived strict scrutiny. Seeid. at 16 (“Alabama did not condemn the use of BVAP targets to comply with §5 in every instance.”).

Outside of HD 75, however, this 55% target was unrelated to local conditions. By applying that threshold across the board, the legislature arguably allowed “race for its own sake” to drive its districting decisions in the remaining districts. (As the Supreme Court reiterated, the sorting analysis proceeds district-by-district. In at least one of the remanded districts, however, intervenors’ own chief witness testified that a 50% BVAP would have been sufficient to maintain ability to elect. These local conditions were ignored in favor of the 55% target.)

Compelling Interest

This view of predominance informs when “compliance” can constitute a compelling state interest. “Genuine compliance” involves the state adopting the underlying purposes of the VRA: preventing dilution (under Section 2) or retrogression (under Section 5). “Superficial compliance” involves a mere attempt by the state to prevent liability (under Section 2) or attain preclearance (under Section 5).

As the district courts in both Perez and Bethune pointed out, a state’s interest in “genuine compliance” is compelling, but a state’s interest in “superficial compliance” is not. See Perez, Slip Op. at 108 n.94 (“While complying with the VRA is a compelling state interest, obtaining preclearance and avoiding potential litigation for their own sakes and without a strong basis in evidence that race-based actions are required for VRA compliance are not compelling state interests.”); Bethune-Hill, 141 F. Supp. 3d 505, 546 (holding that “the goal of ‘actual compliance’ is clearly compelling,” but that a “goal of ‘defensive compliance,’ however, is not a compelling interest”).[14]

Distinguishing between the “interest” question (i.e., whether the interest is compelling) and the “tailoring” question (i.e., whether the race-based decision is sufficiently tailored to that interest) is similarly critical. The Perez dissent, for example, attempts to criticize the majority by pointing to Bethune and reiterating that the “test is not whether using race was eventually shown to be ‘actually necessary’ but, instead, only whether the legislature had ‘good reasons to believe’ that it must use race.” Perez dissent, Slip Op. at 183. This is true as far as it goes, but it doesn’t undermine the Perez decision: the majority held that the state’s interest must be in “actual compliance,” not that the districting decision had to be “actually necessary” to effectuate that interest.

Here, again, I differ with Dorf on Bethune. Dorf argues, “Virginia’s districting choice at issue in [Bethune-Hill] could readily be described as aiming at complying with Section 2.” But a “skin-deep” 55% target—just like a “skin-deep” 50% target—is not reasonably necessary to effectuate an interest in genuine compliance with Section 2 or Section 5. Neither section of the VRA requires racial target setting in a way devoid of local context.

The VRA’s Constitutional Pedigree

In his dissent, Justice Thomas calls the VRA’s compliance requirements “fundamentally at odds with our ‘color-blind’ Constitution.” J. Thomas Slip Op. at 8. For a Justice so firmly committed to constitutional text, Thomas’ assertion is a strange one. In the wake of the Civil War, the Constitution was amended to grant Congress the explicit authority to enact race-conscious voting rights remedies. The VRA was passed pursuant to this express constitutional authority and the language of the VRA largely derives from the Supreme Court’s interpretations of the Constitution itself. Any litigants who claim that the VRA cannot survive the 14th Amendment must come to terms with the import of the 15th Amendment.

Partisan Advantage

At a recent redistricting conference, Marc Elias pointed out that legislators now confess to one crime (partisan gerrymandering) as evidence that they did not commit another (racial gerrymandering). This “partisan advantage defense” (or “incumbency advantage defense”) was raised by legislators in Virginia (Bethune) and North Carolina (McCrory) and looks likely to make an appearance in Georgia. Unfortunately, this “defense” often goes unchallenged. As the district court majority stated in Bethune, with respect to incumbency considerations:

“[I]f legislators attempt to pack minority voters into a particular . . . district for the purpose of protecting the incumbent, this would still constitute racial sorting regardless of the ‘goal’ of incumbency protection. . . . On the other hand, if legislators attempt to pack supporters into their districts or attempt to remove detractors or challengers, then it could hardly be said that race drove the districting [decision]. This does not imply that such actions are immune from constitutional challenge. Although the Supreme Court has only sanctioned a state interest in ‘incumbency pairing prevention,’ the Plaintiffs simply did not raise any challenge to the Commonwealth’s alleged interest in a wider definition of ‘incumbency protection.’ Thus, we are in no position to decide that constitutional question.”

141 F. Supp. 3d at 543. Litigants should challenge the notion that “incumbency protection” includes an interest in “incumbency advantage.”

Holding otherwise quickly leads to a perverse and startling result. In his Perez dissent, for example, Judge Smith argued that a state’s interest in “incumbency protection” implies an interest “incumbency advantage” and, therefore, a constitutional interest in “punishment of enemies”:

“An attempt to dislodge an incumbent political adversary should logically be viewed as a permissible redistricting principle, as is true for the traditional principle of protecting an incumbent. It only stands to reason that if a partisan political majority can exercise its legislative weight to protect its friends, it can do that to punish its enemies for political, non-racial reasons.”

Perez dissent, Slip Op. at 187.

Voting rights advocates should forcefully challenge this line of reasoning. This “blood sport republic” logic is fundamentally incompatible with a constitutional framework that demands—at a minimum—a rational basis for state action. The “partisan advantage defense” should not shield racial sorting, and Cromartie (and its progeny) should not be extended to condone illegitimate uses of political affiliation data.[15]

Conclusion

I agree with Pildes and Elias that Bethune-Hill is a significant decision that is likely to have profound consequences. But is this big news also good news? We’ll see.Manyleadingauthorities foresee the Supreme Court growing increasingly hostile to voting rights claims, and even the more liberal wing of the Court seems exhausted by the crush of complex and fact-intensive redistricting cases. Justice Kennedy’s opinion in Bethune will—despite his entreaties to the contrary—do nothing to stem this tide. In the end, whether Bethune-Hill is viewed as a major voting rights victory or the next Northwest Austin will depend on how VRA advocates and opponents use it—and with whom the Supreme Court ultimately agrees in the years ahead.

[1] Disclosure: I served as a law clerk to the author of Bethune-Hill, Judge Robert E. Payne. I do not represent any parties in the case and the views below are my own.

[3] In Shelby County, Roberts pointed back to Northwest Austin’s 8-1 decision as proof that the Court almost unanimously “subscribed to th[e] views” underpinning the controversial case. SeeShelby County, 133 S. Ct. 2612, 2621 (2013).

[4] As always, nothing appearing on this website is intended as legal advice or should be construed as such. Individuals considering litigation should retain an attorney.

[5] In fact, if there is evidence of discriminatory purpose, plaintiffs can also bring a constitutional dilution claim to avoid being barred by Barlett’s 50%+ requirement under the first Gingles prong. SeePerez, Slip Op. at 112-18.

[6] As the district court in Bethune pointed out, “If Miller stood for the proposition that the intentional creation of a [district pursuant to the VRA] alone constituted ‘predominance,’ then all three majority-minority districts [in Miller] would have constituted racial gerrymanders.”

[7] Justice Ginsberg once noted that “ethnicity itself can tie people together,” Miller, at 944 (dissenting), but the Court has decisively rejected this view.

[8] The Perez majority opinion is particularly cogent on this point. SeePerez, Slip Op. 31, 32 n.28, 38 n.24, 40 n.37, 40-41, 42 n.39, 96, 106, and 122. Hopefully the Supreme Court’s pending decision in Harris v. McCrory will help clarify the state of the law on the “race or party” question and shed additional light on the “basis versus purpose” distinction.

[9] In my view, the “actual conflict” approach to predominance offered a reliable and administrable way to cabin the sorting claim, protect the VRA, and leave packing concerns to be remedied by dilution claims, which are a more natural doctrinal fit. See, e.g., Perez, Slip Op. at 110, 146. So long as Bethune can be fruitfully employed without threatening the VRA, however, it should provide a far more effective enforcement tool (despite creating even more doctrinal inconsistencies).

[10] Moreover, animus is more easily hidden than a failure to conduct a sufficient functional analysis.

[11] This passage should be qualified by its context. The Court states that the “racial purpose of state action, not its stark manifestation” creates the constitutional violation. Thus, the passage can be read to simply reiterate the larger point of the opinion: “The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.” Slip Op. at 9. Because the decision claims to be “controlled by precedent,” nothing in Bethune should be read to conflict with Miller’s holding that “[a] State is free to recognize communities that have a particular racial makeup, provided its action is directed toward some common thread of relevant interests.”

[12] The district court would have allowed the consistent application of neutral principles to foreclose a sorting claim, but would not have allowed post hoc explanations such as politics or incumbency to justify inconsistent applications of neutral principles or departures from neutral principles. See 141 F. Supp. 3d at 539, 557 n.34.

[13] In fact, it is significant that the Alito and Thomas opinions only speak of “majority-minority” districts. One could argue that the intentional creation of a “majority-minority” district—as opposed to the intentional creation of a district that preserves minority “ability to elect”—is an inherently “skin-deep shortcut” because nothing about Sections 2 or 5 necessarily requires the creation of a district with 50%+ minority population. (For example, maintaining ability-to-elect might require 35% minority population in some instances and 65% in others. See, e.g., Perez, Slip Op. 16.) This would bring the concurring opinions of Alito and Thomas into line with the majority view of predominance (and out of conflict with the VRA) rather than visa versa.

[14]See also Perez, Slip Op. at 32 (“[I]ncreasing Hispanic numbers simply to avoid a VRA challenge and without attempting to ensure or maintain opportunity to elect (to comply with § 2) or ability to elect (to comply with § 5) . . . cannot survive strict scrutiny because such use of race was not to comply with the VRA.”); id. at 45 (“To be a compelling interest, the state must show that the alleged objective was the Legislature’s actual purpose for the discriminatory classification and the Legislature must have a strong basis in evidence to support that justification [i.e., show it was reasonable necessary] before it implements the classification.”); id. at 105 (noting that the mapmaker “did not personally think” certain groups needed to be kept together to actually comply with the VRA, but that the groups were kept together to “prevent a legal challenge”).

[15] The Supreme Court’s pending decision in Harris v. McCrory will hopefully provide more guidance on this critical question as well. If anything, Bethune took a step backwards, with Justice Kennedy pointing out in dicta that HD 75 represented the legislature’s efforts “to achieve an informed bipartisan consensus.” Slip Op. at 14.